CLIENT ALERT: OHS Issues Final Rule Relaxing Mask Mandate

By , | Published On: January 9, 2023

On January 6, 2023, the U.S. Department of Health and Human Services, Administration for Children and Families (ACF) Office of Head Start (OHS) promulgated a Final Rule updating the Interim Final Rule with Comment Period (IFC), Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs. OHS issued the IFC on November 30, 2021 to serve as a temporary supplement to program safety practice requirements specified under 45 C.F.R. § 1302.47.

The Final Rule removes the requirement for universal masking for all individuals ages 2 and older, thereby leaving masking policy at the discretion of individual Head Start program management. Citing a series of CDC recommendations, OHS emphasized an intention to “help individuals and communities make choices on what precautions to take, based on the level of disease burden in their community and the capacity of their nearby hospitals.” See Mitigating the Spread of COVID-19 in Head Start Programs, 88 Fed. Reg. 993 (Jan. 6, 2023). Accordingly, Head Start programs may still themselves implement universal indoor masking policies, although the CDC only recommends such policies at the “high COVID-19 Community Level.” Id.

Moreover, the Final Rule requires that Head Start Programs design and implement an evidence-based COVID-19 mitigation policy, which must be developed in consultation with their Health Services Advisory Committee (HSAC). This policy should take into account local conditions and consider multiple mitigation strategies such as access to vaccination, masking, ventilation, and testing. Id. Finally, the Final Rule requires Head Start Programs to establish such evidence-based policies no later than March 7, 2023. This requirement applies to all Head Start grant recipients, including those under an injunction and not subject to the vaccine and masking requirements under the IFC. In contrast, the vaccination and testing requirements remain in effect pending further review for programs in states not covered by an injunction.

Overall, the Final Rule demonstrates a systematic yet flexible approach to the new realities brought on by the COVID-19 pandemic. While alleviating some of the initial burden, OHS’s emphasis on HSAC expertise underscores a continued commitment to health and safety.

OHS scheduled a webinar for January 9, 2023, to discuss the Final Rule and provide further information concerning changes in Head Start program requirements.